Michigan Bar Journal
February 2009
40 Plain Language
The Runaway Verdict
By Mark Cooney
Bailiff: Calling People versus Rambling.
Judge: Ladies and gentlemen of the jury,
the defendant, I. M. Rambling, Esquire, has
been charged with violating section 7 of
the Clear Legal-Writing Code, which prohibits “willfully or recklessly writing unreasonably long sentences.” Counsel, your opening statements, please.
Prosecutor: Thank you, your honor. Ladies and gentlemen of the jury, this is an
open-and-shut case. During this trial, you’ll
hear testimony from innocent readers—including a prominent judge—who were victimized by the defendant’s rambling, run-on
sentences. They’ll tell you that while reading one of the defendant’s briefs, they were
forced to read dozens of sentences that
were almost impossible to follow. And the
sheer number of unreasonably long sentences shows that this was no accident. It
was nothing short of recklessness—unforgivable behavior showing a shocking lack
of concern for the reader. Ladies and gentlemen, you must convict. Thank you.
Defense counsel: Well, well, well, ladies
and gentlemen, it sounds to me like this
is a garden-variety case of workers whin-
25
th
Anniversary
of the column
‘‘Plain Language’’ is a regular feature of
the Michigan Bar Journal, edited by Joseph
Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. Contact Prof. Kimble at
[email protected]. For a list of previous
articles, go to www.michbar.org/generalinfo/
plainenglish/columns.cfm. 2009 is a notable
year for the column.
ing about doing their jobs. These workers
just happen to be a fancy-pants judge and
his fancy little clerks. But judges and their
clerks are paid—your hard-earned tax dol­
lars, ladies and gentlemen—to read legal
briefs. So what if a sentence is a little on
the long side? Just because one judge and a
few clerks say that they had to read something twice doesn’t make it unreasonable.
Maybe they just need longer attention spans!
When you hear the testimony, you’ll see that
this is a bunch of nonsense. My client, Mr.
Rambling, is a highly reputable attorney—
an officer of the court and a pillar of the
community. Reject this charge, and let him
get back to his noble work. Thank you.
Prosecutor: Your honor, the people call
the Honorable Benjamin Wendell Reed. [The
witness is sworn in and states his name.]
Judge Reed, I’m handing you a 19-page document that the parties have stipulated is the
defendant’s brief from the Smith case. What
happened when you and your clerks read
this brief?
Witness: Well, my research clerk started
pulling her hair so hard that a few clumps
actually came out, and then a junior clerk
started to twitch and convulse. So I picked
up the brief and started reading it, and I got
to a sentence on the first page that went on
for about 120 words. I couldn’t make heads
or tails of it. And the long, run-on sentences
just kept on coming, page after page.
Prosecutor: And how did that make
you feel?
Judge: Frustrated. It’s hard enough reading 15- or 20-page briefs day after day. But
when you have to struggle and reread portions of them, it just wears you down. We
may be judges and court staff, but we’re
still human.
Prosecutor: Will you please read aloud the
first troublesome sentence you encountered?
Defense counsel: Your honor, I object under MRE 403. The sentence the witness is
about to read is gruesome and highly disturbing, and upon hearing or reading it,
the jury will be unfairly prejudiced against
my client.
Judge: Will counsel please approach.
[Counsel walk to the bench.]
Judge [whispering]: Mr. Defense Counsel, isn’t that objection tantamount to admitting the crime?
Defense counsel: Tanta wha?
Judge: I’m saying, by objecting because
the sentence is so disgusting and gruesome, haven’t you admitted an element of
the crime: that it’s an awful, unreasonably
long sentence?
Defense counsel [looking sheepish]: I...
I suppose so. Thank you, your honor.
[Counsel return to their tables.]
Defense counsel [in a barely audible
mumble]: Objection withdrawn.
Judge: The witness may answer.
While reading one of the defendant’s briefs,
they were forced to read dozens of sentences
that were almost impossible to follow.
February 2009
Michigan Bar Journal
Plain Language 41
Witness: Here’s the first sentence that
troubled me:
It does not matter whether this Court
deems same as tortious interference with
business (which is clearly supported by the
pleadings and which can be specifically
enhanced or identified through discovery) which is set forth in the pleadings
and which unquestionably satisfies the
requirements set forth within Strickland
or an intentional misrepresentation (the
defendant argues the sole point of who it
was made to and/or who was injured, but
they are in no position to argue that they
did not make a material misrepresentation) since pleadings are to be liberally
construed, until there is further discovery,
including depositions, the court should
not rush to act, as can be seen, a dismissal
will permit the defendant to close discovery doors that they have opened through
their reckless and unwarranted conduct.1
[Juror #2 faints.]
Judge: Bailiff! Please attend to Juror #2.
Water! Someone bring water—
Juror #6 [rushing to Juror #2’s aid]: Stand
back! I’m a doctor.
Witness: And that wasn’t even the worst
of it. How about this one . . .
Defense counsel: Objection! Your honor,
any more evidence along these lines should
be excluded because it’s...it’s...cumulative.
Yeah, that’s it. It’s cumulative and confusing!
Prosecutor: Your honor, reserving the
right to recall this witness, the people will
be happy to move on and call expert grammarian Albert J. Colon. [The witness is sworn
in and states his name.]
Prosecutor: Mr. Colon, is the sentence
that the previous witness read a run-on
sentence?
Witness: Oh, yes. It’s a classic run-on.
This so-called sentence actually contained
multiple independent clauses and . . .
Prosecutor: Plain English, sir, if you please.
Witness: Goodness me, yes. Sorry. Let
me take a step back. A clause is simply a
group of words with a subject and a verb—
the building blocks of a sentence. When a
clause expresses a complete idea that can
stand on its own, it’s called an independent
clause. So the phrase independent clause
is really just a fancy way of saying a complete sentence.
Prosecutor: I see. Please continue.
Witness: Most people refer to any long,
meandering sentence as a “run-on sentence.”
But the technical definition of a run-on is
when independent clauses are fused together
without any punctuation at all.2 Other times,
careless writers combine independent clauses
with nothing but a comma, and that’s called
a “comma splice.”3 Either scenario can cause
readers to do a double-take, and Mr. Rambling’s sentence does both. It actually contains three independent clauses thrown together with no punctuation at all or with
just a comma. And there’s a fourth independent clause within parentheses.
Prosecutor: So you’re saying that the defendant’s long sentence actually contained
three or four sentences?
Witness: Yes, not to mention a whole
bunch of subordinate clauses, meaning
clauses that can’t stand alone as complete
sentences. But even if a sentence doesn’t
meet the technical definition of a run-on
sentence or a comma splice, that doesn’t
mean it’s not too long. Legal writers should
prefer short sentences. Not all short, of
course—length should vary—but short on
average. The more information writers cram
into a sentence, the harder it is for their
readers. And readers in this profession are,
by definition, very busy people reading
about very complex things.
Prosecutor: Your witness.
Defense counsel: Isn’t it true, sir, that you
can’t name a single judge who has expressed
concerns about sentence length other than
Judge Reed here today?
Witness: Actually, a few jump to mind
right away. Ohio Court of Appeals Judge
Mark Painter’s book on legal writing includes a chapter titled “Write Short Sentences.” 4 After noting that the period is “the
most underused punctuation mark in legal
writing,” Judge Painter recommends an average of 18 words a sentence.5 And Michi­
gan Court of Appeals Judge William Whitbeck wrote an article advising lawyers to
“use short, declarative sentences” averaging
Michigan Bar Journal
February 2009
42 Plain Language
less than 20 words a sentence.6 I could easily find more judges, but those two jump to
mind right away.
Defense counsel [beginning to sweat
noticeably]: Uh . . . I see . . . And I’m sure that
those judges meant well, sir. But they don’t
have time to study all this esoteric mumbojumbo for a living, now do they? I mean,
can you tell the jury with certainty that litigation experts or members of the legal-writing
academy share your concerns about [in a
tone of mocking disbelief] long sentences?
Witness: Oh, yes. Richard Wydick’s Plain
English for Lawyers contains a chapter
called “Use Short Sentences,”7 in which he
notes that “[l]ong sentences make legal writing hard to understand.”8 Likewise, in his
popular McElhaney on Litigation column,
Jim McElhaney advised litigators to—and I
quote—“[g]et rid of compound sentences”
because they “get in the way of instant understanding.”9 He added that “[o]ne good
idea per sentence is enough.”10 And legalwriting expert Wayne Schiess recently authored an article on consumer drafting that
emphasized the importance of short sentences.11 He cited no fewer than 10 other
legal-writing experts who have emphasized
the same thing.12 Even the readability statistics for word-processing software emphasize sentence length as an important factor for readability. You look a bit pale, sir.
Should I continue?
Defense counsel: Uhhh...no...no, I don’t
think that’s necessary. But I note that you
haven’t offered any alternative to my client’s version of the sentence that Judge
Reed complained about. So it’s not so easy
to fix, is it?
Witness: Good writing and editing is
challenging work. It’s never easy. But the
most obvious step would be to turn the four
independent clauses in Mr. Rambling’s long
sentence into just what they are: four separate sentences. And with more edits, I’ll bet
we’d end up with seven or eight short sentences. It’s a bit hard to figure out exactly
what Mr. Rambling was getting at, but here’s
how it might look with some edits:
It makes no difference whether the Court
considers the defendant’s conduct tortious interference or intentional misrepresentation. Both theories are viable. The
tortious-interference count satisfies the
Strickland requirements, and further discovery may reveal more evidence supporting that claim. The misrepresentation count also withstands scrutiny. The
defendant has not denied making a material misrepresentation. It argues only
about who was injured by that misrepresentation. Because the Court must liberally construe the plaintiff’s pleadings,
and because discovery could produce
more evidence supporting these theories,
the Court should deny the defendant’s
motion to dismiss.
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Juror #7: Ooh! That’s much easier to
understand!
Judge: Order! Order! It is indeed easier,
but I must ask the jurors to refrain from...
Juror #1: Can we just move on to sentencing? We should impose a long sentence!
Get it?
Judge: Really, sir, please—
Defendant: OKAY, OKAY. I CONFESS!
It’s true. Aside from trying to persuade
readers, I never really thought much about
them. I never worried about how easy it
was to read my briefs. I just tried to make
my argument and make my deadline. But
I’m reformed! I swear, I’ll think about my
readers from now on. I’ll edit my drafts.
I’ll write shorter sentences. I’ll use periods.
Just give me one more chance. Even Scrooge
got a second chance! [sobbing, with head
in hands]
Defense counsel: Motion to strike, your
honor. ■
Mark Cooney is an associate professor at Thomas
M. Cooley Law School. He teaches legal research
and writing at the school’s Auburn Hills campus.
Before joining the Cooley faculty, he spent 10 years
in private practice, most recently with Collins,
Einhorn, Farrell & Ulanoff, P.C., in Southfield,
where he concentrated on civil appeals.
FOOTNOTES
1. This example was inspired by an actual sentence in
Globe Electric Supply Company’s “Response to
Motion to Dismiss Counterclaim” in Square D Co v
Scott Electric Co, unpublished opinion of the United
States District Court for the Western District of
Pennsylvania, issued July 15, 2008 (Docket No.
06-00459) (find at 2008 WL 2779067).
2. Garner, A Dictionary of Modern Legal Usage
(Oxford Univ Press, 2d ed, 1995), p 777.
3. Id.
4. Painter, The Legal Writer—40 Rules for the Art of Legal
Writing (Casemaker Print Pub, 3d ed, 2005), p 66.
5. Id.
6. Whitbeck, Writing to win at the Court of Appeals,
85 Mich B J 20, 23 (July 2006).
7. Wydick, Plain English for Lawyers (Carolina Academic
Press, 5th ed, 2005), p 33.
8. Id., p 34.
9. McElhaney, Style Matters, 94 ABA J 28, 28–29
(June 2008).
10. Id., pp 28–29.
11. Schiess, The art of consumer drafting, 11 Scribes
J Legal Writing 1, 3–5 (2007).
12. Id.